Cleveland Elec. Illuminating Co. v. Astorhurst Land Co.

• Decision Date: 24 July 1985
• Docket Number: No. 83-1968,83-1968
• Citation: 18 OBR 322,480 N.E.2d 794,18 Ohio St.3d 268
• Parties: , 18 O.B.R. 322 CLEVELAND ELECTRIC ILLUMINATING CO., Appellant and Cross-Appellee, v. ASTORHURST LAND COMPANY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 268

18 Ohio St.3d 268

480 N.E.2d 794, 18 O.B.R. 322

CLEVELAND ELECTRIC ILLUMINATING CO., Appellant and Cross-Appellee, v.ASTORHURST LAND COMPANY, Appellee and Cross-Appellant.

No. 83-1968.

Supreme Court of Ohio.

July 24, 1985.

Syllabus by the Court

1. Civ.R. 51(A) abolishes the necessity of a trial court to give special jury instructions as requested by counsel.Pursuant to the procedural rule, the law applicable to the case is to be set forth in the trial court's general charge to the jury.

2.The Rules of Civil Procedure are applicable to land appropriation proceedings except to the extent that such rules would, by their nature, be clearly inapplicable.Civ.R. 1(C).

3.A juror cannot impeach his verdict by way of affidavit in an attempt to prove that it was rendered with an intention different from that disclosed by his vote in the verdict.(Evid.R. 606[B], construed;Long v. Cassiero[1922], 105 Ohio St. 123, 136 N.E. 888, followed.)

Appellee and cross-appellant, Astorhurst Land Company("Astorhurst") is the owner of the Astorhurst Golf Course which is located on a one-hundred-forty-seven acre tract of land in Walton Hills, Ohio.Appellant and cross-appellee, Cleveland Electric Illuminating Company("CEI"), filed this appropriation action to acquire an easement over and upon a 3.7 acre portion of appellee's land for an electric transmission line.The requested easement would include the right to construct one pole approximately one-hundred-thirty feet high, and the right to string fourteen electrical lines across the pole.A part of two teeing areas and a portion of one fairway on the course would be hindered by the easement.

The case was tried to a jury of twelve.The only issues for jury determination centered on the amount of compensation for the easement appropriated and any amount of damage to the residue estate.During the course of the trial, the court permitted appellee's attorney to elicit testimony from its witnesses that the existence of the power lines would be dangerous and would render two holes on the golf course unplayable which, in turn, would result in limiting the usefulness of the eighteen-hole golf course.CEI's witnesses disputed this testimony by indicating that the transmission line would not endanger employees or patrons of the course, and would not affect the playability of the two holes involved.This testimony was based on past experiences with a number of other golf courses which were traversed by electrical transmission lines.

Each of the parties also called an appraiser to testify.Both appraisers stated that the value of the easement was $11,700.However, there was a wide disparity in their testimony concerning the amount of damage to the residue.Appellee's appraiser, indicated that such damage was $221,100, while CEI's appraiser testified that the amount of damage was merely $23,300.

After both parties presented evidence, appellee's counsel offered a number of proposed jury instructions which, in the main, contained elements of damage to be considered by the jury, such as annoyance, inconvenience, danger, noise, fear, and unsightliness.The trial court denied appellee's request for the special instructions by ruling that the right to be compensated for the damage to the residue estate, and the measure of damages therefor, would be included in the court's general charge to the jury.¹The trial court, however, permitted counsel for appellee to argue to the jury all of the factors specified in his proposed instructions regarding danger, noise, fear, etc., which might arise out of the construction of the power lines.

In further instructions, the court advised the jury that at least eight members thereof must agree upon the verdict in order to constitute a valid judgment.No objection was made by counsel and the case was subsequently submitted to the jury.A verdict was returned in favor of appellee in the amount of $11,700 for the easement acquired and $50,000 representing damages to the residue estate.A journal entry confirming the jury verdict was entered by the Probate Division of the Court of Common Pleas of Cuyahoga County.

It appears from the record that immediately after trial the jury foreman expressed to counsel for both parties that he had not concurred in the verdict, but had only signed the jury form because he, as foreman, thought that since eight jurors had already signed it would make no difference if he also signed the form.In a motion for a new trial, counsel for Astorhurst submitted an affidavit which set forth the foreman's misconception.However, the motion was overruled by the trial court.

Upon appeal, Astorhurst assigned a number of errors for review.The first assignment implicated the special jury instructions requested by Astorhurst that were denied by the trial court.Another claimed error centered on the trial court's refusal to allow Astorhurst to introduce by way of cross-examination the amount of compensation that a CEI witness received from appellant for an electric transmission line easement over the golf course in which he was part-owner.The final assignment of error involved in this litigation related to the erroneous jury instruction that only eight jurors, as opposed to the required nine, were needed to concur in the verdict.

The court of appeals reversed the trial court on the assignment of error relative to the special instructions in regard to the elements to be considered as damage to the residue and remanded the case for a new trial.The appellate court also stated that the trial court erred in the instruction concerning the number of jurors required for a valid judgment.However, the court concluded that counsel's failure to object precluded Astorhurst from assigning this issue as error, citing Civ.R. 51(A).Furthermore, the court held that Evid.R. 606(B) prohibited the introduction of the foreman's affidavit.Finally, the claimed error pertaining to the amount of compensation given by CEI to another golf course owner was overruled by the court.

This cause is now before the court pursuant to the allowance of a motion and cross-motion to certify the record.

Squire, Sanders & Dempsey, Eben G. Crawford and Gregory A. Cada, Cleveland, for appellant and cross-appellee.

Kelley, McCann & Livingstone, Stephen M. O'Bryan, Mark J. Valponi and Michael Ann Johnson, Cleveland, for appellee and cross-appellant.

HOLMES, Justice.

In presenting its case to this court, CEI argues that specific jury instructions are no longer required to be given by a trial court in that Civ.R. 51(A) has abolished such instructions, and that the law applicable to the case is to be set forth by the trial court in its general charge to the jury.Appellant essentially contends that in a land appropriation action involving a partial taking, a sufficient charge is one which generally informs the jury that the property owner is entitled to be compensated for any loss in value to the residue of his property caused by the taking as well as the condemnor's use of easement rights acquired; and, further, that it is not error for the court to refuse to instruct the jurors that they may consider one or more specific elements of potential damage which the property owner claims will diminish the value of the residue.

Conversely, on cross-appeal, Astorhurst argues that a trial court commits plain error when it instructs that eight, rather than nine, members of a twelve-member jury are sufficient to sign a jury verdict.Astorhurst also claims error in the trial court's refusal to allow cross-examination of the CEI witness relative to the amount of compensation that he received for an earlier power line easement.

ICEI's Appeal

CEI correctly points out that the law prior to the enactment of the Civil Rules required the trial court, upon request of counsel, to give a special jury instruction, if correct, and a failure to do so constituted reversible error when such error was prejudicial to the complaining party.SeeWashington Fidelity Natl. Ins. Co. v. Herbert(1932), 125 Ohio St. 591, 183 N.E. 537;Smith v. Flesher(1967), 12 Ohio St.2d 107, 233 N.E.2d 137[41 O.O.2d 412], paragraph two of the syllabus.This rule of law was nullified by the enactment of Civ.R. 51(A).SeePresley v. Norwood(1973), 36 Ohio St.2d 29, 32, 303 N.E.2d 81[65 O.O.2d 129].This procedural rule provides in pertinent part:

"At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.Copies of such requests shall be furnished to all other parties at the time of making such requests.The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. * * "

The Civil Rules are applicable to land appropriation proceedings except to the extent that such rules would, by their nature, be clearly inapplicable.Civ.R. 1(C).

It is this court's belief that the function of the trial court's general charge to the jury is the same now as it was prior to the enactment of the Civil Rules, i.e., to state clearly and concisely the principles of law necessary to enable the jury to accomplish the purpose desired.SeePickering v. Cirell(1955), 163 Ohio St. 1, 4, 125 N.E.2d 185[56 O.O. 1].

In an appropriation case, one of the issues for jury determination is that of damages to the residue estate.It is essential for the court generally to instruct the jury on the nature and the elements which comprise this type of injury.In an effort to assist the trial courts of this state, the Ohio Judicial Conference has promulgated jury instructions relative to these elements in 3 Ohio Jury Instructions (1973) 23, Section 301.21.

In comparison to Section 301.21, a review of the appropriate portions of the trial court's charge here...